Hot Mic! Watch What You Say in Public.

I don’t know about you, but I’m careful with what I say in public. In case you missed it, Oregon’s famously restrictive law against one-party recording has been rescinded in public places.  In Project Veritas v. Michael Schmidt, the Ninth Circuit ruled that Oregon’s law banning secret recordings violates the First Amendment. ORS 165.540(1)(c) generally prohibits unannounced recordings of conversations, subject to several exceptions, such as recordings by law enforcement.

This case didn’t stem from a prosecution of Project Veritas. Instead, the plaintiff sued Multnomah County and the State of Oregon over the impact of this law on their operations.

Multnomah County and the State of Oregon convinced the Oregon District Court to dismiss the case on the grounds that Project Veritas lacked standing. The Ninth Circuit overruled, stating:

Project Veritas’s allegations are sufficient to establish standing for a First Amendment pre-enforcement claim. Under Article III of the Constitution, plaintiffs must establish “the irreducible constitutional minimum of standing,” by showing that they suffered an injury in fact, that there is “a causal connection between the injury and the conduct complained of,” and that it is likely that “the injury will be redressed by a favorable decision.

By winning on standing, Project Veritas got the Ninth Circuit to rule on the merits. The majority opinion states: “we conclude that section 165.540 burdens more protected speech than is necessary to achieve its stated interest.” Using Animal Legal Def. Fund. v. Wasdena as the key precedent, a similar case that came before the Ninth Circuit in 2018, the Court found a compelling interest in protecting investigative recordings made in the public interest.

So, you better watch what you say in public. Someone might be recording.

Eric Shierman lives in Salem and is the author of We were winning when I was there.